Relates to the criminal possession of a weapon; repealer

Summary of specific provisions

Repeals subdivisions 7 and 8 of section 265.01 and adds two new subdivisions to section 265.02 to include explosive bullets or armor piercing ammunition.

Section 4 adds a new subdivision 11-a to section 400.00 of the penal law.

Paragraph (a) of subdivision 11-a provides that no licensee of firearms shall possess any loaded firearm on his person in a public place while such licensee is either under the influence of alcohol or under the influence of a controlled substance. A person is considered under the influence or alcohol or under the influence of a controlled substance when the person has voluntarily consumed alcohol or voluntarily used one or more controlled substances, or both, to the extent that his ability to safely handle or use a loaded firearm has been significantly dimin- ished.

Paragraph (b) of subdivision 11-a deems suspended, pending a hearing, the firearms license with respect to any firearm(s) which form the basis of a charge of possessing a firearm while under the influence of alcohol or drugs or a refusal to submit to a chemical test for the purpose of determining the alcoholic and/or drug content of a person's blood. Paragraph (b) authorizes the confiscation of such firearm(s) by police pending the suspension hearing.

Paragraph (c) of subdivision 11-a provides that a person who holds a license to carry or possess a firearm impliedly consents to a chemical test of his breath, blood, urine or saliva to determine the alcoholic and/or drug content of his blood where a police officer has, reasonable

grounds to believe that the person possesses a loaded firearm while under the influence of alcohol or drugs.

Paragraph (d) of subdivision 11-a sets forth the license suspension hearing requirements. Hearings are to be conducted within 7 days of the alleged violation before the appropriate licensing officer, or, if the hearing is not held within 7 days, the license of the person must be reinstated and any lawfully possessed firearms and ammunition confis- cated by the police must be returned pending a hearing. If the licensee is found to be in violation of possessing a firearm while under the influence of alcohol or drugs, the licensing officer must immediately suspend the person's license for a period not exceeding one year and the person must surrender his license, any amendment thereto, and any weap- ons held pursuant to such license. Persons whose license is suspended must successfully complete, as a condition for reinstatement of a firearms license, an alcohol and/or drug rehabilitation program,

Paragraph (f) of subdivision 11-a contains evidentiary standards regard- ing the use of blood-alcohol tests applicable in a suspension hearing.

Paragraph (h) of subdivision 11-a provides for the right to appeal the decision made at a hearing.

Paragraph (i) of subdivision 11-a authorizes a police officer to tempo- rarily detain a person whom such officer reasonably believes is in violation of this section for the sole purpose of administering a chemi- cal test to determine whether the person is under the influence of alco- hol or drugs.

Section 5 Amends section 400.00 (15) of the penal law to clarify that possession of a firearm while under the influence of alcohol or drugs is not, in and of itself, a crime.

Section 6 adds a new section 837-m to the executive law to establish the alcohol and drug rehabilitation program required of all persons found to be under the influence of alcohol or drugs while in possession of a loaded firearm, which program must be completed in order to reinstate the person's firearms license.

Amends section 265.12 of the penal law to increase the penalty for crim- inal sale of a firearm in the 2nd degree to a class B felony and increases the penalty for criminal sale of a firearm in the 1st degree to a class A felony and increases the penalty for criminal sale of a firearm in the 3rd degree to a class C felony. Increases the penalties for all degrees of criminal sale of a firearm to a minor.

Amends section 1349 of the civil practice law and rules to change the formula for distribution of forfeiture monies to decrease the amount to the law enforcement purposes sub-account from 75% to 65% and requiring 10% of forfeiture monies to be disbursed to the police athletic league of the claiming political subdivision or public authority.

Amends section 70.02 to increase the minimum sentence for criminal possession of a weapon in the second degree to ten years.

Justification

There were 5,750 violent crime incidents which involved a firearm in 2006. The New York State Police Gun Investigation Unit seized over 1,000 illegal firearms and made over 750 arrests in 2006 alone. In 2007, there were 5,250 criminal incidents that involved the use of a firearm outside New York City. Many of these murders and other violent crimes were perpetrated by individuals using illegal guns. Neighborhoods and communities across the State have been tragically impacted by guns and gun violence. We must do everything in our power to stop people from carrying and using illegal weapons. This legislation will help to ensure that those who use and posses illegal weapons will receive appro- priate punishment. A 10-year automatic sanction will also serve as a deterrent to carrying illegal weapons.

Further, individuals who have been granted the privilege by the state of obtaining a firearms license should not be permitted to abuse this priv- ilege by possessing a firearm while under the influence of alcohol or drugs. Possessing a loaded firearm while intoxicated possesses a serious threat to the citizens of this state. Enactment of this legislation would decrease the possibility of an accidental or intentional discharge of a firearm by a person whose judgment is impaired by alcohol or drugs.

In addition, this legislation will allocate 10% of money seized through criminal forfeiture to the local police athletic league of the claiming jurisdiction. This will provide additional resources for the police athletic leagues throughout the State of New York. These PALs will have a positive impact on the lives of young people and provide an alterna- tive to guns, gangs and other negative influences and behaviors.

This legislation will also increase the penalties for explosive ammuni- tion and armor piercing bullets. Section 265.01 currently provides that possession of armor piercing ammunition is a class A misdemeanor. The statute also indicates that to be charged will illegal possession, the actor must intend to use the armor piercing ammunition-.against-another. The majority of those who lawfully wear body armor in the State of New York are law enforcement personnel, therefore those who intend to use such ammunition "against another" are planning to shoot law police offi- cers. A misdemeanor is simply an inadequate sentence for such a grave offense.

Prior legislative history

New Bill.

FISCAL IMPLICATIONS:None to the State.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become law